U.S. ex rel. Gorham v. Franzen, 81-1788
| Decision Date | 19 April 1982 |
| Docket Number | No. 81-1788,81-1788 |
| Citation | 675 F.2d 932 |
| Parties | UNITED STATES of America ex rel. Robert GORHAM, Petitioner-Appellee, v. Gayle FRANZEN and James Greer, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Martin Carlson, Asst. Deputy Defender, Chicago, Ill., for petitioner-appellee.
Neal B. Goodfriend, Asst. Ill. Atty. Gen., Chicago, Ill., for respondents-appellants.
Before SWYGERT, Senior Circuit Judge, and PELL and BAUER, Circuit Judges.
Robert Gorham (Gorham or petitioner) filed a successful habeas corpus petition in the district court, alleging that his Fifth Amendment privilege against self-incrimination had been violated by the introduction of a confession in his state trial. According to Gorham, the confession had been obtained from him in a custodial interrogation renewed immediately after he had refused to make a statement. The state trial court, after a pre-trial evidentiary hearing, had orally admitted the confession. The state appellate court, on Gorham's appeal from his conviction, had determined in a written opinion that Gorham had equivocated when asked if he would like to make a statement, and therefore concluded that the continued interrogation did not violate his Fifth Amendment rights. The Illinois Supreme Court denied leave to appeal. The federal district court granted Gorham's habeas petition without conducting an evidentiary hearing, predicated on its determination from the state court record that Gorham had refused to make a statement. As the constitutional violation alleged turns on whether Gorham did or did not refuse to make a statement, the determinative issue is whether the district court erred in issuing the writ based on its determination from the state court record that Gorham had refused to make a statement.
A. The State Court Proceedings
On April 2, 1976, Gorham and Kathleen Thompson were arrested for the murder of Kathleen's husband, Kenneth Thompson, on January 10, 1975. Prior to his trial, the petitioner filed a motion to suppress a forty-two page confession which he had given and signed the day of his arrest. The petitioner's motion objected to the confession as "involuntary" because it had been elicited by threats of force, denial of medication, and promises of leniency. The motion makes no mention of Gorham's purported refusal to make a statement.
The evidence presented in the pre-trial hearing on the motion is summarized in the state appellate court decision, People v. Gorham, 66 Ill.App.3d 320, 23 Ill.Dec. 370, 384 N.E.2d 6 (1st Dist. 1978), and need not be repeated here. The crucial portions of the record of the hearing for purposes of this appeal are the statements of the witnesses as to Gorham's response when asked to make a statement.
A Lieutenant Barger testified that during Gorham's interrogation he had "... asked him (Gorham) if he wished to make a statement relative to the charge against him and he didn't want to make any statement at that time." On cross-examination, however, Barger testified:
Q. What did you do after you read him his rights?
A. I asked him would he like to make a statement regarding his charge.
Q. He said no, is that correct?
A. He said no.
According to Illinois Bureau of Investigation agent Thomas Naughton, Gorham responded to Barger's question as follows:
Mr. Gorham said it was a pretty heavy beef, he is not quite sure whether or not he would want to make a formal statement, that he did four years at Menard and there was plenty of people at Menard who were there only because they did give statements and he then said he is not quite sure whether he would want to go that route.
On cross-examination, Naughton said that Gorham was "mulling over whether or not he was willing to make a statement or wanted to make a statement."
The state appellate court noted that Assistant State's Attorneys Helsel and Prendergast were also present during the initial interrogation. Prendergast did not testify. Helsel testified:
Q. Now during the 10 or 15 minutes period that you were with Mr. Gorham and Lt. Barger I believe it is your testimony that Lt. Barger said words to the effect, "we couldn't have gotten this arrest warrant unless we had some evidence." Did he say that to Mr. Gorham?
A. Yes, sir.
Q. Did he also ask Mr. Gorham to make a statement?
A. I believe he asked him if he wanted to make a statement at that point.
Q. Now during this period of time, that 10 or 15 minutes Mr. Gorham declined or refused to make a statement, isn't that correct?
A. To the best of my recollection, yes.
At approximately 10:00 p. m., Barger and Helsel left the room in which Gorham was being interrogated and spoke to Officers Kuester and Robustelli who subsequently continued Gorham's interrogation. Robustelli described his conversation with them as follows:
Q. Approximately 10:00 o'clock Lt. Barger came out of the office accompanied by Mr. Helsel, is that correct?
A. That is correct.
Q. And at that point would it be fair to say you were relieving them in the interrogation of Mr. Gorham?
A. No, I was not in the office when Lt. Barger and Mr. Helsel was in there. When they came out I had a conversation with them and I went in to talk to Mr. Gorham along with Detective Kuester.
Q. Well, about 9:45 Lt. Barger and Mr. Helsel went into Mr. Gillis' office with the purpose of interrogating Mr. Gorham, is that correct?
A. That is correct.
Q. And when they came out about 10:00 o'clock Mr. Gorham had declined to make any statement, isn't that correct?
A. That is correct, in fact that was my conversation with Lt. Barger.
Similarly, Officer Kuester testified:
Q. And when they (Barger and Helsel) came out they indicated to you that up to that point Mr. Gorham had declined to make a statement, is that correct?
A. Yes.
Yet, Barger testified:
Q. When you left the room after you had been there about 15 minutes you had a brief conversation with Sergeant Robustelli and Detective Kuester, isn't that correct?
A. Yes, sir.
Q. What did you tell them?
A. I asked them if they would go in and talk to him.
Q. And do you remember the exact words you said?
A. I told them I haven't told him anything and I want you to try to talk to him.
Q. Did you say I want you to try to get a statement from him, he wouldn't give me a statement?
A. I said I want you to try to talk to him.
Q. Well, isn't it true that you asked them to relieve you in the interrogation?
After this conversation, Kuester and Robustelli went into the office to interrogate Gorham.
At the conclusion of the evidentiary hearing on the motion to suppress, the trial court orally denied the motion. Following a jury trial in which the confession was introduced, the petitioner was convicted of murder and sentenced to a term of 100 to 200 years.
The petitioner appealed his conviction to the Illinois Appellate Court contending that the trial court had erred in denying the motion to suppress the confession. The opinion of the appellate court affirming Gorham's conviction, People v. Gorham, 66 Ill.App.3d 320, 23 Ill.Dec. 370, 384 N.E.2d 6 (1st Dist. 1978), begins by summarizing the evidence from the evidentiary hearing on the motion to suppress. After a review of the law on interrogation after an individual has invoked the right to remain silent, the opinion of the court proceeds to set forth the following factual findings pertinent to this appeal:
When defendant was arrested, he was advised of his rights and no interrogation took place. Later, in the drive to Chicago, he was not questioned. Upon his arrival in the prosecutor's office, defendant again was advised of his rights. At the hearing on the motion, defendant stated he was aware of his rights and understood what was said to him. When defendant was informed that the authorities possessed considerable evidence, defendant inquired about the evidence. Defendant asked what could be done for him and was told that nothing could be done. According to Naughton, defendant vacillated and continued to consider whether he should talk. Naughton testified that defendant was mulling over what he believed to be the consequences of making a statement.
66 Ill.App.3d at 324, 23 Ill.Dec. at 373, 384 N.E.2d at 9 (1st Dist. 1978). The court concluded that Gorham "did not request an attorney nor did he unequivocally exercise his right to remain silent." After remarking that the petitioner was given Miranda warnings on two separate occasions within the thirty minutes of interrogation, the court found:
There also is considerable evidence that he did not elect to remain silent. One of the officers testified that defendant was not sure whether he wished to make a statement. Several officers testified that he questioned them about the evidence which had been obtained.
In the present case, defendant chose not to remain silent. He understood his rights and voluntarily waived the exercise of those rights. The trial court properly denied defendant's motion to suppress the confession.
66 Ill.App.3d at 325, 23 Ill.Dec. at 374, 384 N.E.2d at 10 (1st Dist. 1978). Thus, the state appellate court affirmed the conviction, and the Supreme Court of Illinois subsequently denied Gorham's petition for leave to appeal. People v. Gorham, No. 51683 (March 29, 1979).
Gorham filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1976), claiming only that his Fifth Amendment privilege against self-incrimination had been violated by introduction of the confession obtained from him by custodial interrogation renewed immediately after he had refused to make a statement. The state in response filed a motion for summary judgment. No evidentiary hearing was held prior to issuance of the district court's order on the habeas petition.
The order of the district court, after noting that the confession was not inherently...
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